Dealing with Law in Migration Control

Law and Decision Making within Consulates

In contrast to fields such as the environmental regulation of industry (Fineman, 1998), visa applicants generally have little scope to negotiate, influence, or challenge the discretionary powers of consular staff. We explore various factors that determine how consular agents engage with migration law in their decision-making processes.

Diplomatic officers who are formally in charge of decisions have separate offices from consular clerks. While this formal distinction between decision making and more administrative tasks is seen as a means of avoiding corruption, organizing work flows in this way ensures that, in practice, foreigners are not able to negotiate their case directly with those in power. One way in which consular clerks can avoid confronting applicants who want to ask questions or challenge intermediary decisions within an ongoing application procedure is by explaining that the actual decisions will be made by a ‘committee’.

Consular clerks viewing a case in a positive light can choose to help the applicant by providing information and advice that will speed up the issue of the visa. Time pressures and officers’ always implicit mission to act as agents of migration control mean, however, that a collaborative stance vis-à-vis applicants is exceptional. During busy periods at the consulate in Yaoundé, for example, the three consular clerks received up to 80 applicants every morning and often complained to each other about applicants’ audacity or ignorance:

These people exaggerate! He’s come straight from his village. He doesn’t understand anything. (Interview with a consular clerk in Yaoundé)

In contrast to other civil servants within the French administration (Spire, 2008), the work of a consular clerk involves not only helping applicants to deposit their files but also protecting the consulate from the applicants, primarily by revealing as little as possible about their work.

It is a risky job; we try not to speak to the people. It is better if we don’t speak to them, at the counter and outside as well. Just a few words. We have as little contact as possible. We have to be strict. (Interview with a consular clerk working for 8 years in Tunis, July 2007)

The guiding principle of consular clerks is to speak as little as possible, but at the same time to try and find out as much as possible about the applicants. As a result of the ensuing opaqueness, many applicants repeatedly have to return to the consulate to provide certificates or missing items for their files, thus making the application procedure all the more tedious, time-consuming, and costly.

Although not formally entitled to grant or deny a visa, consular clerks nevertheless play an influential role in the decision-making processes. Consular clerks may, for example, suggest the length of a visa for which applicants should apply. ¹ They can also advise applicants on the type of visa categories (i.e., nondependent ascendant, professional, or child of a French citizen), offering the greatest chance of success. Depending on their personal impressions during the visa interview, they usually also add positive or negative annotations to applicants’ files. If an item in a file or a stamp on a document is missing, it is the consular clerks who can either constrain applicants by making them start all over again and file a new application or by allowing them to return with the items needed to complete the existing file.

Once the consular clerks have registered and annotated the applications, the files are sent to the diplomatic officers for final and formal decision making. During the summer, the number of files can be so high that diplomatic consular officers spend their entire day making decisions:

It’s mad; we work in a constant emergency. Today, we have 415 decisions to make. There are only two of us, and so we have no time to waste. It is either yes or no. We can’t do anything else. Every day, we get messages from the prefecture wanting to know about the files, but we have absolutely no time to answer their questions. (Interview with a diplomatic officer in Tunis, July 2007)

Depending on the clerks responsible for handling a file, diplomatic officers only occasionally look at individual papers within the file. If the diplomatic officer in Yaoundé was on leave, the vice consul would take all the decisions in one go. In the space of half hour, the vice consul would take 20 decisions, which meant spending about 40–80 seconds on each case. As decision-making processes at consulates are volatile, contingent, and carried out under immense time constraints; a visa refusal does not automatically mean that the applicant has actually been involved in fraud, but merely that a clerk considered an element of the file to be suspicious.

The huge numbers of visa applications that consular staff have to handle every day are also measurable in financial terms, namely through the visa fee (€60 for short-term visas and €99 for long-term visas). For aspiring migrants, visa fees can represent almost a month’s wages in Tunis and twice the monthly wage in Yaoundé. In both cases, these sums of money add a lucrative dimension to the position of street-level bureaucrats at consulates and one that also differentiates their work from other bureaucratic activities. Consular clerks engage more directly in monetary transactions than many other street-level bureaucrats and may be personally responsible for reimbursing money if they forget to charge the visa applicants (Alpes, 2013).

The rising costs of visas have changed the profile of visa applicants and allowed French authorities to show lower rejection rates, in other words, fewer rejections in relation to the total number of visa applications (both long and short stay): whereas the rejection rate at French consulates in 2002 was about 33%, since 2007, it has been around 10%. More particularly, rejection rates at the French consulate in Cameroon dropped from 27.7% in 2005 to 24.5% in 2007 (with 2500 rejections out of a total of 10,200 applications), while that year’s rejection rates at the consulate in Tunisia fell from 30.3% in 2002 to 15.1% in 2007. ²

Rejection rates are thus currently significantly higher in Cameroon than in Tunisia. A substantial part of these differences can be explained by the type of relations that France has with these two countries. French economic interests are greater in Tunisia and result in a friendlier political stance towards certain categories of visa applicants. Business people, for example, are allowed certain privileges. These can take very different forms, such as dispensations from certain elements in the application file or the granting of a visa to someone who would otherwise have been denied one. This preferential treatment is anything but exceptional at some offices.

At consulates, such as Tunis, that are economically and politically important to France, the core of the difficulty facing street-level bureaucrats is the need to combine two major and at times incompatible objectives: fighting ‘migratory risks’ and granting derogations to preserve France’s diplomatic and economic interests abroad. Consular staff refer to a ‘migratory risk’ if there is a risk of foreigners on short-stay visas seeking to remain in France beyond the limit of their visas. Nevertheless, derogations can represent up to a quarter of the 80,000 visas issued each year by the French consulate’s visa service in Tunis. In some cases, applicants are recommended by local authorities or a big corporation, and the consulate then has to decide which of the two objectives should prevail.

In Tunis, the rule by exemption is made visible by the existence of a separate visa counter where, each week, intermediaries present piles of files that have received the support of local political or economic powers. In Yaoundé, by contrast, the consulate does not provide a special counter to facilitate visas for business people and members of the local elite. While consular clerks deal with Tunisian migration as either risky in the case of ordinary applicants or as a source of economic opportunity in the case of more privileged Tunisian travelers, their colleagues in Cameroon treat the vast majority of applicants simply as potential sources of fraud and insecurity.

As we have shown, there are two ways for street-level bureaucrats at consulate offices to engage with migration law. On the one hand, consular clerks can multiply derogations to alleviate the power of the law, as in the case of the Tunisian local elite. On the other hand, they can use their discretionary powers to apply legal regulations beyond what is strictly required by the letter of law. In both ways of dealing with law, street-level bureaucrats seek to defend French national interests.

Law and Bureaucratic Habitus

The way in which consular agents deal with the law depends both on practical constraints relating to the organization of their work and on the street-level bureaucrats’ habitus. In the case of consular clerks and officers, this habitus is primarily shaped by a concern to combat fraud and to defend state interests. In this section, we examine the characteristics and implications of consular agents’ bureaucratic habitus.

When starting work at a consular office, clerk’s primary focus is not so much on acquiring juridical knowledge, but instead on learning from the experience of their colleagues. In other words, they focus on emulating the informal disposition of the latter towards acting to combat fraud. This set of durable dispositions and practices can be seen as a bureaucratic habitus. Any visa application concerning medical care in France, for example, is automatically classified as suspicious because, as consular clerks see it, there is always a risk that Cameroonians or Tunisians will overstay their visas and use French-resident family members’ social security cards to pay for medical expenses. Clerks in Tunis systematically, therefore, demand a medical certificate from all applicants over the age of 50 years. This requirement stems from consular clerks’ concern to prevent fraud, rather than from any legal regulations they are required to implement. In other words, part of the administrative process in the consular situation is not guided by law (Calavita, 2005). This is similar to the study conducted by Loveland, who found that while local authorities in charge of UK housing benefit took action to combat fraud on a daily basis, the scheme under which the relevant clerks operated did not contain any express provisions on claimant fraud (Loveland, 1989).

In the case of migration policy, the obsession within the bureaucratic habitus with fraud has been further fed by the volatile employment conditions of the locally employed French consular clerks themselves. As explained above, subsidiary tasks within consulates have been progressively subcontracted to private companies and locally employed clerks. Consular clerks’ employment situation consequently sets them apart from the kinds of state settings that Lipsky initially studied. These days, French consulates recruit consular clerks from among a population of French people already living abroad and employ them on local contracts (in other words, on contracts paying less than the French minimum wage). The moral crusade against fraud has been presented to consular staff in general and consular clerks in particular as a matter of the French welfare state’s survival. Driven by a sense of insecurity about their own future, French consular clerks believe they are also defending themselves by protecting the state against what they see as illegitimate demands by non-French nationals.

Constant references to the risk of fraud have created a culture of distrust within the bureaucratic habitus of consular officers and clerks. Until recently, migrants’ wish to obtain French nationality for their children was seen as a sign of willingness to assimilate. These days, however, consular clerks and diplomatic officers see it as an attempt to illegitimately usurp a right. Similar dynamics are at play in the increasing number of marriages between French nationals and foreigners. For years, mixed marriages were seen as an indicator of ‘integration’, whereas now they are presented as a sign of a rise in ‘marriages of convenience’.

Consular clerks and officers in both Cameroon and Tunisia build formal risk profiles (Pratt, 2010: 476). Their suspicions of fraud are driven not only by national stereotypes (Gilboy, 1991) and covert classificatory systems of perceived moral worth, national origins, and apparent social class (Heyman, 1995) but also by normative assumptions about legitimate monetary exchanges and family loyalties. Consular clerks in Yaoundé are constantly afraid that Cameroonian spouses of French men will declare children that are not biologically theirs and also that de facto they will remain married to other men in Cameroon.

The culture of suspicion at consular offices is also entangled with attempts to impose norms on marital unions. Only those women who convincingly disavow prior loyalties to their family of origin and thus promise to become good, ‘safe’ citizens are allowed to enter into marriage with a French citizen. However, while Cameroonian spouses’ loyalties to their family of origin are deemed to be selfish before and during their marriage, such migrants are still expected to leave France and return to their family of origin in Cameroon if they later seek a divorce. Within the context of marriage migration, therefore, a female applicant has to convince the consulate both that she is and is not attached to her family of origin in Cameroon.

Depending on the goals of migration control, consular clerks construct different ideals of victimhood in order to legitimize their work. By comparing Tunisia and Cameroon, we can see how racialized portrayals of fraud and victimhood within marriage migration prevail over ones based on gender. While consular agents in Cameroon portray the fraudulent foreign woman marrying a naive French man as the key suspect, the reverse holds true in the consulate in Tunis, where the foreign man marrying a naive French woman for the sole purpose of obtaining a residence permit has come to represent the incarnation of document fraud par excellence. Immigration control in Tunisia is therefore dressed up as a progressive fight for the equality of men and women, with consular staff drawing the boundaries between ‘us’ and ‘them’ on the basis of sexual equality (Butler, 2008). This is all the more applicable, given that the staff at the consulate in Tunis are predominantly female.

By contrast, the fight against fraud in Cameroon operates with inverse gender roles. At the French consulate in Yaoundé, female spouses are not portrayed as naive, but instead as greedy, selfish, and materialistic. All prospective female marriage migrants are suspected of wanting to marry a French man solely in order to obtain financial support for their family of origin in Cameroon. Efforts to combat fraud in Cameroon therefore seek to protect those vulnerable French men who merely want ‘love’ from the Cameroonian women suspected of being involved in fraud or of being a ‘fake’.

While sociopolitical factors construct fraudulent objects, consular agents, too, see their efforts to combat fraud as being in tension with the exigencies of law. As a diplomatic officer at the French consulate complained, ‘Even though we know that they [i.e., Cameroonian women] are only waiting for French nationality in order to be able to disappear into thin air once they are married, there is nothing else that we can do’. In this consular clerk’s view, the instruments of control at her disposal for long-stay visas were limited. She explained that, from a legal perspective, there were few grounds for refusing a visa to the spouse of a French citizen. French citizens have ‘liberty of union’ and are thus free to marry the person of their choice. In contrast to short-stay visas, where consular clerks can refer to the notion of ‘migratory risk’, the only power available to consular clerks in the case of long-stay visas is to make sure that the correct administrative procedures are followed.

In their quest to combat fraud, consular agents in Cameroon thus focus their energies on verifying civil status documents. They consider the Cameroonian State Registry to have little reliability and estimate that some 70% of all certificates are forged. As the diplomatic officer explained, ‘I refuse because I don’t know who these people are’. Consular agents in Tunisia, by contrast, focus on questioning the nature of family ties. In both cases, the assumption of the applicants’ innocence is suspended and this translates into bureaucratic practice. As Salter (2006) points out, rule by decision can prevail over rule by law within the space of the border.

The distrust of the administration nourishes a spiral of suspicion that further encourages a belief that fraud is being committed. Consular staff who believe that most visa applicants are potentially guilty of fraud demand ever increasing numbers of certificates and civil status documents. The Cameroonian state administration, however, is not always able to provide these documents within the required period and with the required degree of internal consistency. In interpreting incompatibilities and inconsistencies in applicants’ documentation as signs of dishonesty and bad will, the consular staff assume that Cameroonian and Tunisian bureaucracies produce documents for their citizens that are comparable and/or compatible with the regulatory demands of the French state. As the diplomatic officer at the French embassy in Yaoundé explained, she did not care whether a visa applicant she was dealing with was the victim of her own national administration.

The bureaucratic habitus of street-level bureaucrats in migration control fulfils important functions. First of all, the culture of suspicion allows consular agents to deal with high numbers of applications under intense time pressure. In both Yaoundé and Tunis, consular staff deal with their workload by seeking to identify overall structures and patterns and then the small oddity that will tilt a case towards the pile of folders of either visa denials or visa approvals. To allow scope for doubt is to be naive and to do your work badly. By contrast, to be suspicious is a sign of professionalism.

Furthermore, the bureaucratic habitus helps to make the highly repetitive and stressful work emotionally bearable and at times even satisfying. Successful detection of a fraudulent traveler’s check, for example, demonstrates a clerk’s position of superiority in the fight against irregular migration. It gives meaning to the hours that consular clerks have to spend each day entering applicants’ data into databases. Thus, by reinforcing the ‘spectacle of illegality’ (De Genova, 2002: 436–439), consular agents further contribute to the legitimacy of their efforts to combat fraud.

As we have seen, the bureaucratic habitus of consular staff is predominantly characterized by a culture of suspicion but does not always target the same objects. In constructing different types of suspicions, consular clerks can hide behind the moral imperative of needing to combat fraud in order to achieve political objectives of migration control.

Law as a Constraint and Resource

In his paradigm about the state of exception, Agamben (2005) states that law tends to be replaced by violence in the margins of the state. Building on these ideas, Salter (2006) puts forward the idea that the border constitutes a permanent state of exception. Given that the right to be presumed innocent and to have a fair trial is held in abeyance at the border, he argues that individuals at the border are ‘subject to the law, but not subject in the law’ (Salter, 2006: 169). This section explores the function of law in interactions between foreigners and state representatives.

Consular agents are more constrained by law in the case of long-stay visas than short-stay visas. If a French citizen marries a foreigner, consulates are in principle obliged to issue a visa to the spouse of that French citizen. The only way in which they can prevent the applicant from reaching French territory is to complicate and delay the procedure. If they consider a marriage to be suspicious, consular staff can play on the number and specific requirements of documents so as to lengthen the procedures. They can do this by, for example, refusing to recognize marriage certificates and asking for more recent transcripts. In some cases, it can then take years for a spouse to receive a visa. Sometimes this results in divorce before the couple has even had a chance to be physically united.

Temporality is crucial to the powers of consular clerks. The temporal dimension of waiting (Schwartz, 1975) illuminates another important dimension of the position of law at consulate offices. By using their power to delay a decision, state agents can neutralize those elements of the legal frameworks that go against their bureaucratic habitus. Street-level bureaucrats feel all the more legitimate in doing so if they are able to put something into practice that the legislative is not able to assume either publicly or juridically.

In the case of long-term visas for purposes other than marriage (such as for university studies, medical visits, and family reunifications), consular agents are also constrained by law because the grounds for refusing a visa are fixed in writing and communicated to unsuccessful applicants. The latter can then question the legitimacy of those grounds before an administrative judge. Consular staff have to take account of this possibility, even if in most cases, as we pointed out earlier, this constraint remains largely theoretical.

Applicants for short-stay visas do not have a legal right to have their applications granted. Consular clerks are consequently able to draw on law as a resource. All they need to do to turn down an application is to invoke the notion of ‘migratory risk’. As a consular clerk in Tunis explained:

Our aim is to detect migratory risk. The problem is that there isn’t simply one criterion for estimating this risk; it is about a range of indicators. I’ll give you an example. A married woman wants to visit her daughter in France; her husband and children live here and so, in this case, because her family is here, the risk is limited even if she is in an insecure job situation. If we’re dealing with a father in a stable and comfortable job who wants to visit his children, we will consider criteria such as his financial means or his professional situation. (Interview with a consular clerk in Tunis, July 2007)

The room for maneuver that is available to clerks and officers is all the more important, given that the concept of ‘migratory risk’ has never been defined in any legal texts. The lack of precise criteria for determining what constitutes migratory risk means that consular agents rely on a sense of pragmatism to guide their judgment. In this way, the methods of consular staff resemble those of border police who automatically consider certain profiles to be potential risk factors that can trigger ‘illegal practices’ (Coutin, 2003: 70). A Cameroonian woman in unstable employment and wanting to visit her husband in France on a short-stay visa, for example, can be denied a visa because consular staff fear that she will change her administrative status upon arrival in France. Rather than exploring such elements in more detail, the consular clerks mobilize the juridical category of ‘migratory risk’ to justify their social a priori. By contrast, applicants able to demonstrate a high social status are more likely to be assessed positively: ‘Here, for instance, we are dealing with the son of a doctor, and so here I can let him have a visa’.

While consular staff, on the one hand, use social profiling to assess whether an applicant is likely to comply with the law upon arrival in France (Heyman, 1998), they are also able, on the other hand, to find retrospective justification in legal terms for the series of implicit criteria that led them to turn down a visa application. An unemployed foreigner with a beard and an Arabic-sounding name, for example, can have his application rejected on the grounds of the suspicions that his case will arouse. In the file, however, the staff in charge will frame the rejection in a juridically acceptable manner, namely by stating that the application does not comply with formal requirements.

Consulates' decisions are based on social a priori that crystalize in the context of different applications.. Each element considered individually within an application assumes a different meaning when linked to other criteria. A strong accent, for instance, can be taken as evidence of an insufficient level of French in the case of an unskilled worker, but can be perceived as charming and exotic in the case of an international company executive. Similarly, in France, the presence of a spouse with a residence permit can be taken as an indicator of being well integrated but can also be used against the visa applicant if the spouse’s children are still in the country of origin. This can be likened to a game in which staff move back and forth between implicit and explicit criteria, thus allowing a system to emerge in which the preferences of consular staff are perpetually being encoded and decoded.

Contrary to Agamben’s (2005) claim, our observations demonstrate that law is not absent at the border. Its presence at consulates can be seen in, for example, the obligation for street-level bureaucrats to justify the reasons for their visa decisions. As well as being a constraint, law can also, therefore, be seen as a resource that enables consular agents to dress up prejudices and social judgments as legal criteria (Lovell, 2006). In this sense, both the absence and presence of law can be a catalyst for violence among aspiring migrants. Indeed, law and the use of sovereign force are closely intertwined in encounters at borders.

As we have seen, the way in which consular clerks deal with law varies depending on whether the applications relate to short- or long-stay visas. In the case of the former, consular clerks can easily put together ‘evidence’ of the existence of a ‘migratory risk’. In the case of long-stay visas for marriage migration, however, consular clerks are frustrated by their inability to draw on a vague notion such as ‘migratory risk’ as a means of exerting their powers. In these situations, therefore, the powers available to consular clerks and diplomatic officers rely on delaying procedures and stringency in their administrative and procedural requirements. Dressing up this body of regulatory practices as the neutral application of law depoliticizes the work of consular clerks by presenting it as a purely technical process.

Strategic Use of Law by State Agents

By ethnographically exploring how consular clerks use their discretionary powers, this article has sought to illuminate dynamic interactions between state agents, bureaucratic practices, and the place of law in migration control. According to Lipsky’s thesis, the practices of street-level bureaucrats can be explained with reference to several individual dilemmas (Lipsky, 1980). In the case of consular staff, their scope for discretionary decision making is preconditioned by organizational constraints such as the division of tasks and by their social judgments about applicants’ legitimacy. Ethnographic observations of relations between consular staff and visa applicants in two very different countries such as Cameroon and Tunisia demonstrate the importance of the conditions in which state agents apply legal regulations.

This article highlights the relationship between the ways in which street-level bureaucrats apply law in their day-to-day work and the significance of their bureaucratic habitus. Most scholars working in line with Lipsky’s thesis explain the practices of street-level bureaucrats as a way of minimizing the negative aspects of their job or of maximizing their satisfaction (Lipsky, 1980: 141–144; Nielsen, 2006). We argue that these individual dilemmas are influenced by a set of durable and transposable dispositions (Dubois, 2010); in other words, by the bureaucratic habitus. This habitus, which is particular to the field of migration control, allows bureaucrats to apply law in the belief that they are defending the national interest. It also reveals a facet of state power that turns against noncitizens and produces a form of deterritorialized domination.

In addressing this facet of state power, this article has sought to go beyond dichotomous oppositions between law as a pre-given (Larson, 2004: 740) and practice (Loveland, 1988). In their daily work, consular staff engender regulatory norms that become almost as important as the legal texts in determining how street-level bureaucrats deal with law. Regulatory norms stemming from bureaucratic practice both influence and complement the textual foundations of law in migration control.